The Ethics of Immigration symposium: On Social Membership

by David Owen on June 1, 2014

Joe Carens’s The Ethics of Immigration is just the book that the growing field of the political theory of migration needed. Rich in argumentation, wide in its coverage, fluently and reflectively written, it will act as a locus of, and focus for, discussion and debate.

It is also a book with a distinctive methodological structure. In the first part, Carens presupposes ‘(1) the contemporary international order which divides the world into independent states with vast differences of freedom, security, and economic opportunity among them and (2) the conventional moral view on immigration, i.e., that despite these vast differences between states, each state is morally entitled to exercise considerable discretionary control over the admission of immigrants’ (p.10) and seeks to reconstruct how liberal democratic states should, in acting on their own deepest commitments, treat immigrants. In the second part, Carens focuses on admission and in the final two chapters drops this presumption of state control and re-articulates his well-known argument for open borders. In this commentary, I will focus on the first part of the book.

The arguments of the first part build to Carens’s theory of social membership (chapter 8) on which I’ll focus but we should preface this discussion by noting how they build to this theory. Carens is committed to a contextualist form of political theory that works from the ground up. The discussions of birthright citizenship, permanent residents, temporary worker, irregular migrants can be seen as the cases from which Carens is attempting to reconstruct a norm of social membership that will make coherent sense of our democratic practices of social and political membership. The norm that Carens reconstructs is ‘that living within the territorial boundaries of a state makes one a member of society, that this social membership gives rise to moral claims in relation to political community, and that these claims deepen over time.’ (p.158)
Why is noting the method important here? Consider that if we focus on a single example, for example, permanent residents, we might wonder why we need a theory of social membership. After all, the case for the political membership of permanent residents can be made on straightforwardly democratic lines by simply appealing to Robert Dahl’s ‘principle of full inclusion’: ‘The demos must include all adult members of the association except transients and persons proved to be mentally defective’ (1989: 129), where ‘adult members of the association’ refers to ‘all adults subject to the binding collective decisions of the association’ (1989: 120). However, this principle does not provide guidance with respect to the full range of cases that Carens considers nor does it offer guidance on issues of social, rather than political, membership, i.e., the kinds of social rights that whose who are not, or are not yet, citizens should be entitled. So we need to address Carens’s theory of social membership as a theory designed to make our judgments cohere across a range of cases. Perhaps the central controversy to which this theory gives rise is Carens insistence that it is the fact of social membership that matters and that law should be constrained by the acknowledgment of this fact. When the relevant threshold has been passed and the immigrant has become social member, then they should be entitled to access to citizenship. I want to focus on three aspects of this theory addressing, in turn, the idea of social membership, the idea of thresholds and the relationship to law.

One case that Carens is confronted with is the hermit or recluse who is resistant to making social connections. His practical response is to note that this is, at most, a very rare occurrence and therefore not a good basis for legal reasoning. His theoretical response is to draw an analogy with the case of a birthright citizen who is a recluse and argue that one cannot deny citizenship to the immigrant recluse without also denying it to the birthright citizen recluse. This is essentially the same response. Birthright citizenship is justifiable because it will typically be the case that children born to resident citizens form their lives through a rich web of social connections tied to the territorial society of the state. Carens’s argument is dependent on what is typically true of human beings. It is not that social connections are a necessary condition of entitlement to citizenship but that the well-founded expectation that human beings will typically form such social connections in their state of residence is a necessary condition for the justifiability of a general rule for granting citizenship in terms of the idea of social membership. To counter this argument, what is needed is either to show that the expectation is not well-founded or to show that the state has a justified basis for exemptions to the rule in the case of residents who do not form such connections.

Let me turn then to the idea of thresholds such that once a person has lived in a state for a given length of time, we can presume that they will typically have become a full social member and that entitlement to citizenship is the acknowledgment of this fact. My concern here is not with imagined hermits but rather with the presumption that the time and residence proxies function in the same way for different types of migrant. Consider the case of a short-term worker or student whose stay does not meet the threshold that Carens proposes for access to citizenship but whose work contract is then renewed or student status extended (e.g., for postgraduate work), even if following a brief period of absence from the state, such that the period of (more or less continuous) residence passes the threshold for the inclusion of habitual residents. Should we count the period of residence as starting again with the contract renewal, or as continuous across contracts? This question arises because, in contrast to the habitually resident non-citizen, the short-term worker is admitted as someone engaged on a project with a specified end and, then, re-admitted on another project with a specified end. Even if one accepts Carens’s theory of social membership, it does make a difference in that when the state admits ‘voluntary’ migrants for an open-ended period, the relationship between state and migrant is conceived as potentially permanent, whereas in the case of the short-term worker or student, each of their serial stays has a contractually agreed and specified purpose with an endpoint. The temporary migrant lives in society with the presumption that they will be required to leave; the habitual migrant with (or acquiring) permanent residency status lives in society with the presumption that they will not be required to leave. These distinct conditions of social life will almost inevitably affect the depth and extent of the ties to society that these differently situated migrants enjoy. (Consider by analogy the difference between ‘home’ friendships and ‘holiday’ friendships.) In this respect, I think that the stress of the social membership argument on a standard period of time has a tendency to suppress the point that time is being used as a generic proxy for typically expected social ties. The problem is that the adoption of a standard period of time as a generic proxy for typically expected social ties across different classes of migrant relies on the presupposition that the migrant’s relation to the society in which they reside is independent of the temporal and normative horizon in terms of which migrant’s experience, and reflect, on their presence in society. This is an empirical issue but I am sceptical as to the truth of this presupposition.

The preceding remarks operate internal to the frame of Carens’s theory and its presumption that law should be constrained to acknowledge the fact of social membership. But should it? One way of framing the issue is to consider the case of irregular migrants whom it might be charged acquire social membership but acquire it fraudulently on the basis of a residence to which they are not entitled. This is, I think, the point behind Michael Blake’s objection to Carens’s theory. I have sympathy for Blake’s objection, namely, that sometimes the normative force of the fact of social membership can be over-ridden by other legal and moral considerations but I think that the contrary claim holds as well, namely, that other moral and legal considerations can be over-ridden by the fact of social membership in virtue of the social connections that can typically be expected of such membership. To focus this point, consider whether there should be a statute of limitations with respect to irregular migrants who could be returned to a home state where they would not be subject to oppression or injustice, should there be a statute of limitations beyond which the right of the state to deport an irregular migrant ceases. We should note that it is widely believed that some rights are capable of ‘fading’ in their moral importance by virtue of the passage of time and by the sheer persistence of what was originally wrongful infringement (Waldron 1992). The pertinent question is, consequently, whether the right to determine whether the long-term irregular migrant is entitled to remain in the state is one such right. There are two reasons to suggest that it is, and so should be subject to a statute of limitations. The first is that the harm to the individual of being deported after long-term residence and having acquired the attendant social attachments is significantly greater than any harm done to society in allowing this individual to remain. This argument is, however, open to the objection that, although this may be true for each case taken singly, it leaves aside the general harm of irregular migration to the state as a legal and political order. The more important reason is the second, namely that precisely because we can typically expect that the irregular migrant will have forged social connections, the legitimate expectations of other ‘regular’ members of society whose life-plans centrally involve the presence of the long-term irregular migrant will also be frustrated and harmed by the act of deporting this migrant. This is most clearly the case when an irregular migrant has a ‘regular’ family. This does not entail that the long-term irregular migrant might not be subject to penalty, for example, an extension of the period of regular residence prior to any access to citizenship but it does provide reasons for restricting the deportation of long-term irregular migrants and allowing them to regularize their status.

Consideration of these three issues suggests that the principle of social membership is defensible, that social membership is immensely important but that the conditions of social membership as demarcated by time and residence can vary across types of immigrants – and that while it can, in principle, be over-ridden by considerations of morality and law, it can also be sufficiently important to constrain or over-ride such considerations.